2011 National Planning Conference: Bettman Symposium

Planners in the Courts

What does a Michigan township do when it follows all the right planning procedures in denying a permit and still finds itself losing in court when challenged?

It keeps appealing until it wins at the highest level, the state supreme court. And it doesn't wait, says attorney Richard Norton, until it has already lost an appeal before turning to APA's amicus brief. Instead, Kasson Township turned to APA very early in the process.

As a result, two speakers at the Bettman Symposium on Monday agreed, the township not only won but persuaded the high court to reverse its 1982 precedent and create new law more favorable to municipal planning across the state.

Three speakers unveiled various sides of this fascinating planning and legal story that made new history for Michigan planning law. Trudy Galla, AICP, is the planning director of Leelanau County, which contains Kasson Township on its southern boundary, and sits along Lake Michigan on the northwestern corner of the Lower Peninsula. She shared the local planning history behind the case with Mark Wyckoff, FAICP, director of the Planning and Zoning Center at Michigan State University, and Richard K. Norton, of the University of Michigan. Norton presented APA's amicus arguments before the Michigan Supreme Court.

The case, Kyser v. Kasson Township, involved gravel. Michigan is full of sand and gravel and other mineral wealth. There are no fewer than 14 gravel mining sites in the township, which has a gravel mining district in its zoning code. In October 2003, Mrs. Kyser submitted a request to the township to permit such an operation on some of the land owned by her and her late husband — who, it turned out, was quoted while still alive as saying that he did not want his property in the gravel district. Evidently, his widow had other plans, but the township staff report to the planning commissioned noted that 14 percent of the township was already in the district, and there was no shortage of gravel operations nearby.

The planning commission recommended denial, but with three out of five members of the township board recusing themselves because of their own mining interests, the township did not act on the request. After an election, a new member joined the board in December 2004, at which time the board voted 3-0 to deny the permit with two abstentions, largely on grounds that there was no demonstrated shortage of gravel pits.

It is the legal history shared by Wyckoff and Norton that makes the case so significant, however. In 1982, in what Norton argues is a precedent based on poor investigation of prior legal precedent, the Michigan Supreme Court ruled in Silva v. Ada Township, that, since minerals "can only be mined where they are found," this fact should get higher consideration in zoning decisions and effectively made mineral mining a "preferred use," shifting the burden of proof in such cases to the local jurisdiction to show that there were "no very serious consequences" from denying the use. This remained the rule when Kyser and mining interests in Michigan won on appeal and when the township, with the support of six organizations filing amicus briefs on its behalf, including APA, appealed to the state high court, which took up the case in 2009.

In the meantime, in 2008, Michigan had amended its planning and zoning enabling legislation dating to 1921 in a consolidated Planning Enabling Act covering all townships, municipalities, and counties, tying zoning more tightly to comprehensive plans, a strong point in the township's case, according to Galla.

In a decision exceeding 50 pages, in a case it almost had decided not to hear, the high court undertook a rarity: reversing its own precedent by concluding:

The "no very serious consequences" rule has no constitutional basis and was based on inept authorities;

The rule was not a "species of reasonableness," as plaintiffs claimed, but inverted the normal burden of proof that favored local legislative decisions unless proven unreasonable;

The rule violates the separation of powers doctrine and constitutes an activist role for the court in questioning local authorities; and